Behavior Interventions and Discipline for Special Education Students

1. Behavior Interventions and Discipline for Special Education Students Jeff Ganson Bremerton School District August 20, 2013

2. Overview • Discipline: Limits and requirements under IDEA • When & how to conduct manifestation determinations • Development of FBAs & BIPs • Washington’s new discipline law • Aversive interventions including seclusion under ESHB 1688 (and proposed regulations)

3. Exclusions under IDEA Less than 10 cumulative days in same school year A B C D E More than 10 cumulative days, but not change of placement The 5 columns More than 10 cumulative days, and is change of placement Weapons, drugs and serious bodily injury Stay put is likely to result in injury to self or others

4. Change of placement A removal of: • More than 10 consecutive school days • Less than 10 consecutive days, if part of a series of removals that constitute a pattern because: • More than 10 cumulative school days • For substantially similar behavior • Factors: Length of removals, total time, proximity in time

5. Removal for < 10 cumulative school days in same school year Exclusions under IDEA Column A Done. (no educational services)

6. Removal for > 10 cum. school days but not change of placement Exclusions under IDEA Column B Removal may proceed, but child entitled to services determined by school in consultation with teacher

7. Removal which constitutes a change of placement Exclusions under IDEA Provide notice to parents on same day as decision Column C Within 10 school days, relevant IEP team members conduct manifestation determination If manifestation, must conduct FBA/BIP process and return child to previous placement If not manifestation, child may be removed, but entitled to services determined by IEP team

8. Removal for weapons, drugs or serious bodily injury Exclusions under IDEA Provide notice to parents on same day as decision Column D Child may be placed up to 45 school days in IAES determined by IEP team Within 10 school days, relevant IEP team members conduct manifestation determination If manifestation, must conduct FBA/BIP and return child to existing placement (after 45 day IAES) If not manifestation, child removed, but entitled to services determined by IEP team

9. Removal if stay put is substantially likely to result in injury to self or others Exclusions under IDEA District requests expedited due process hearing Column E Hearing held w/in 20 school days and decision issued w/in 10 school days If hearing officer agrees, child placed in appropriate IAES for up to 45 school days If hearing officer disagrees, child remains in current placement Procedure may be repeated if district believes child would be dangerous if returned to previous placement

10. “Off the chart” options • Agreement on change in placement • Honig injunction

11. Manifestation determinations • When? • Within 10 days of the removal • Who? • The parent and relevant members of the IEP team • Based on what? • All relevant information in file, including the IEP, teacher observations, and parent information

12. Manifestation determinations • Two questions: • Was the behavior caused by or directly and substantially related to the student’s disability? • Was the behavior the direct result of the school district’s failure to implement the IEP? • If yes to either question, the behavior is a manifestation.

13. If conduct is a manifestation… • Conduct FBA, implement or review BIP • Student’s placement cannot be changed (no removal), except by agreement • Except: Interim alternative educational setting allowed for certain weapon and drug violations, or infliction of serious bodily injury – but FAPE still required

14. If conduct is not a manifestation… • May apply regular discipline applicable to non-disabled students • BUT:Still must continue to provide FAPE: • Enable participation in general curriculum • Enable progress toward IEP goals

15. If conduct is not a manifestation… • And, “as appropriate,” FBA and behavior intervention services designed to address the behavior violation so that it doesn’t recur • FAPE and behavior intervention services can be provided in an interim alternative setting • Services decided by IEP team

16. So what difference does it make?! • You can change the location of the program, temporarily • Ostensibly, you can’t change the program • FAPE is FAPE? • More direct/1:1 services = less time needed? • IEP team decision

17. What’s the theory behind this? • A very telling error - WAC 392-172A-05145(5)(c): • “If the school district, the parent, and relevant members of the student’s IEP team determine the conduct was manifestation of the student’s disability, the school district must take immediate steps to remedy those deficiencies.” • Which deficiencies?? • Implication: Behavioral manifestations mean there are deficiencies in the program.

18. What’s the theory behind this? • The MD is a focusing tool • Theory: With special ed, FBA, behavior intervention, you can “remedy” disability-related behavioral issues • Alter the program, or implement the program, but don’t punish the student • Behavior is a sign program is not working?

19. IDEA’s Consequences • Hearing process – time-consuming, expensive and stressful • Losing: • Compensatory education • Parent’s attorney fees • Lost “face”: Being right doesn’t necessarily get you anywhere, but being wrong robs you of credibility with parents

20. So back to manifestations… • Two questions: • Was the behavior caused by or directly and substantially related to the student’s disability? • Was the behavior the direct result of the school district’s failure to implement the IEP? • If yes to either question, the behavior is a manifestation.

21. Caused by the disability • “Caused by” • Cause: “to make something happen” • Possible formulations: • The disability made the student engage in the conduct. • The student could not help it.

22. Or, “directly and substantially related” • Direct: “without intervening factors or intermediaries” • ED comment: “not an attenuated association, such as low self-esteem” • Substantial: “of considerable importance”; it makes a difference

23. “Direct and substantial” • Possible formulations: • We can see how the disability resulted in the conduct. • We could have predicted the conduct based on what we know about the disability. • The student was prevented by the disability from controlling the conduct, or from knowing it was inappropriate.

24. What about EBD? • Is conduct pretty much always a manifestation of behavioral disability? • No. Often, but not always: • EBD category is broad – not all behavioral • ODD: Reaction to being confronted by a staff member in an aggressive way? • No “rule” – look at direct and substantial every time

25. What about EBD? • But query: Should you be doing a lot of manifestation reviews on a student who has a behavior-related disability? • What kind of change of placement is proposed, and why? • What’s the theory again? Does “regular discipline” help?

26. Or, failure to implement IEP • The conduct was the direct result of the district’s failure to implement the IEP • Direct: “without intervening factors or intermediaries” • Result: “consequence, effect or outcome” • So the failure to implement must have led to the conduct. • This conduct probably would not have occurred if the IEP had been fully implemented.

27. Mistakes/Pitfalls • Viewing the MD as your key to being able to discipline the student • A result-driven approach – We’ve got to get this kid out of here • With special education students, that ship has sailed – you may be able to move them (temporarily), but you will continue to serve them

28. Mistakes/Pitfalls • Thinking “not a manifestation” means more than it really does: • Again, you must continue to serve • You may have to consider FBA/BIP (and probably should) • Can you identify the educational reason for a disciplinary removal?

29. Mistakes/Pitfalls • Ignoring the purpose of the MD, which is to use a conduct event to learn something about the student’s needs, and then adjust accordingly • IEP Team: Not reviewing programming, implementation, interventions, supports, etc. based on the MD findings (regardless of “yes” or “no”)

30. Mistakes/Pitfalls • Consequences of failure to act on conduct • Short-term: Parents can appeal your decision – expedited hearing, onerous process, potential attorney’s fees • Long-term: If you don’t address disability-related behavior now, you will have a larger FAPE problem down the road

31. Functional Behavioral Analysis • An FBA uses data to answer the question “Why?” • Conducted by IEP team • Different sources of data: • Direct observation • Indirect/informant • Functional analysis – experimental manipulation

32. Components of an FBA • Precise description of the problem behavior • Potential ecological/setting events • Immediate antecedent events • Consequences/outcomes • Other related factors

33. The FBA/BIP process • Thoughtful analysis/synthesis of the data, towards development of summary statements, then behavior support/intervention plans • Avoid quick conclusions – challenge assumptions, and test theories • Analyze results and modify the analysis as necessary

34. Example FBA Summary Statement • When Adrian begins to have difficulty with a math assignment, she will yell obscenities in order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day.

35. Example FBA Summary Statement When Adrian begins to have difficulty with a math assignment, she will yell obscenities in order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day. Antecedent (Situation)

36. Example FBA Summary Statement When Adrian begins to have difficulty with a math assignment,she will yell obscenities in order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day. Antecedent (Situation) Behavior (Problem Behavior)

37. Example FBA Summary Statement When Adrian begins to have difficulty with a math assignment,she will yell obscenitiesin order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day. Antecedent (Situation) Behavior (Problem Behavior) Consequence (Function)

38. Example FBA Summary Statement When Adrian begins to have difficulty with a math assignment,she will yell obscenitiesin order to escape from the task.This pattern is more likely to occur if Adrian has received reprimands earlier in the day. Antecedent (Situation) Behavior (Problem Behavior) Consequence (Function) Setting Event (Situation)

39. Behavior intervention plans • Goal – Make the problem behavior irrelevant, ineffective, inefficient • Positive supports, interventions, and strategies to address behavior when a student’s behavior interferes with his/her own learning or that of others • No requirements except that IEP team develop it • What a BIP is not: • A behavior contract • An aversive intervention plan

40. From FBA to BIP

41. From FBA to BIP • Setting event strategies • Antecedent/predictor strategies • Targeted problem behaviors • Response strategies • Teaching replacement behaviors • Consequence strategies • Reinforcers for appropriate behavior • Undesirable consequences for problem behavior • Monitor results; adjust as needed

42. Students who are not yet eligible • Non-special ed students are entitled to IDEA’s discipline protections if district had knowledge they were “eligible” – meaning, the district has not evaluated, despite: • Parent expressed written concerns to teacher or supervisory personnel • Parent requested evaluation • Staff expressed concerns about behavior to supervisor • Expedited evaluation requirement

43. New discipline law – all students • ESSB 5946 – effective Sept. 28, 2013: • No more indefinite expulsions • One-year limit for most suspensions/expulsions • Reentry conferences • Reengagement plans

44. New discipline law – all students • All suspensions/expulsions must be for a definite period. • Existing definition of expulsion: “Indefinite” • There may be no difference between suspension and expulsion now • Limited to one year. • Exception: Building administrators may petition superintendent to exceed one year when warranted based on public health or safety under rules to be adopted by OSPI (currently nonexistent)

45. Long-term suspensions & expulsions • District has a duty to make reasonable efforts to assist student in returning to “an educational setting as soon as possible” • Must convene reentry conference with student & parent: • Within 20 school days of removal (& no later than 5 days before reenrollment) • Discuss a plan to reengage the student in a school program • Regardless of whether student has appealed or applied for readmission

46. Long-term suspensions & expulsions • In developing reengagement plan, administrators must consider: • Shortening the suspension/expulsion • Imposing other forms of corrective action • Supportive interventions that aid in the student’s academic success and keep the student engaged and on track to graduate

47. Long-term suspensions & expulsions • Reengagement plan must: • Be tailored to the student’s individual circumstances, including consideration of the incident that led to removal • Aid the student in taking the necessary steps to remedy the situation that led to removal • What does this look like? • Behavior contract? • IEP/FBA/BIP??

48. Emergency expulsions • Must end or be converted to other form of discipline within 10 school days • Must provide notice of conversion and hearing rights; emergency expulsion also subject to hearing right • To avoid “gap,” provide early (immediate?) notice of conversion to suspension/expulsion

49. Seclusion & restraint: ESHB 1688 • Effective July 28, 2013: • “Isolation”: excluding a student from his/her regular instructional area and restricting the student alone within a room or enclosure, from which student may not leave. • “Restraint”: physical intervention or force used to control a student, including use of restraint devices.

50. Seclusion & restraint: ESHB 1688 • Applies to every instance of isolation or restraint on a student on an IEP or 504 plan: • Following release, implement follow-up procedures: • Review incident with student and parent to address the behavior that precipitated • Review incident with the staff member who administered to discuss whether proper procedures were followed